MUHAMMAD SIDDIQ Versus STATE

ORDER

1. G. SAFDAR SHAH. J.‑ The petitioner was tried, along with his two cousins, namely, Ghulam Rasool and Muhammad Sharif (real brothers), by the Addi tional Sessions Judge, Faisalabad, for an offence under section 302/34, P.P.C. for the murder of Muhammad Munir, who vide his judgment dated 9‑8‑1979, convicted the petitioner under section 304, Part‑1, P.P.C. and sentenced him to seven years' R. 1. and a fine of Rs. 1,000 and in default one year's R.

1. But he acquitted the other two accused by giving them the benefit of doubt. In appeal filed by him in the High Court, the petitioner failed as the same was dismissed by a learned Single Judge, vide his judgment dated 6‑2‑1980.

2. The occurrence in this case is said to have taken place at 7‑30 a. m. on 24‑1‑1977 in Qilla No. 5 of Square No. 11 of Chak No. 137/R. B. within the area of Chak Jhumra Police Station, District Faisalabad, and the F. I. R. of it was reported to the Police at about 12‑00 noon by the deceased himself who was then in injured condition. The version given in the F. I. R. (which after the death of Muhammad Munir became his dying declaration) was that the deceased and his brother, namely, Muhammad Rashid (P.W. 8) were engaged in cutting the wheat crop standing in Qillas Nos. 5 and 6 of Square No. 11, when the petitioner along with his two acquitted cousins, arrived at the scene each armed with a '12‑bore gun; that no sooner they saw them, the three of them fired at them out of which however, the shots fired by Ghulam Rasool and the petitioner hit the deceased in the neck whereas the one fired by Muhammad Shard went astray. The occurrence was witnessed by one Inayat (not produced), as well as P. Ws. Muhammad Rashid (the real brother of the deceased) and Asghar Ali, the first cousin of the deceased.

3. In the trial Court, the prosecution relied on the eye‑witness account furnished by P. Ws. Muhammad Arshad and Asghar and on the dying declaration of deceased Muhammad Munir; as the motive, as well as on an unlicensed gun which is said to have been recovered at the pointing out of the petitioner from the house of one Gheela, belonging to another village. In his statement under section 342, Cr. P. C., however, the petitioner denied his involvement but the learned trial Judge nevertheless fund him guilty, convicted him and sentenced him as aforesaid.

4. The only piece of evidence on which the learned trial Judge had relied against the petitioner was the recovery of the gun, as the rest of the evidence tendered by the prosecution was disbelieved by him.

5. The grievance of the learned counsel for the petitioner is that the High Court, which has substantially concurred in the view taken by the learned trial Judge failed to take into consideration the fact that the gun recovered at the behest of the petitioner was an unlicensed gun; was not connected with the commission of the crime inasmuch as neither any empties were recovered from the scene of occurrence nor was the gun in question sent for the examination of the Ballistic Expert, therefore, the conviction of the petitioner was legally untenable specially when there existed no other evidence on record to lend support to the recovery of the said gun.

6. By going through the judgment of the High Court, however, we do not fully subscribe to the contention urged by the learned counsel, as it ha implicitly believed the eye‑witness account furnished by P. Ws. Muhammad Rashid and Asghar Ali. But even so, the evidence in this case does seem to require re‑appraisal in view of the fact that whereas the learned trial Judge had disbelieved all the evidence tendered by the prosecution except of course for the recovery of the gun, the High Court seems to have disagreed in that behalf by relying on the evidence of the eye‑witnesses.

7. Leave is accordingly granted to the petitioner. However, in so far as the bail application is concerned, notice of it shall go to the Advocate‑General, Punjab, for a date to be fixed by the Office.

8. S. Q. Leave granted.